High Court's Misuse of the Past

January 15, 2001

The National Law Journal
January 15, 2001

High Court’s Misuse of the Past
By E. Joshua Rosenkranz

When Florida attorney Joe Klock mistakenly referred to Justice John Paul Stevens as “Justice Brennan” during the Supreme Court argument in Bush v. Gore, the courtroom erupted into embarrassed chuckling over the Supreme Court novice’s gaffe.

But when I read the court’s opinion the next day, I thought maybe it wasn’t a gaffe after all. Perhaps Mr. Klock saw the ghost of William J. Brennan Jr., the great defender of voting rights, hovering in his old seat, which Justice Stevens now occupies.

The U.S. Supreme Court constructed its subsequent opinion on pillars of law carved by Justice Brennan to protect the right to vote. Justice Brennan led the court’s charge into the “political thicket” in Baker v. Carr. That 1962 landmark case held that a voter could bring a constitutional challenge, under the equal protection clause, to a state’s practice of crafting legislative districts with wildly different populations so as to increase the voting power of some communities at the expense of others.

The decision, in turn, led to the “one person, one vote” rule in the very cases now cited by the court in Bush v. Gore. Later rulings by the Supreme Court, building on Baker v. Carr, left no doubt that the equal right to vote also entails an “equal right to have those votes counted.”

Justice Brennan’s opinion did more to change the face of American politics than any other case this century. No wonder Chief Justice Earl Warren considered it the Warren Court’s single most important ruling.

I think Justice Brennan might have agreed. I happened to call him on election eve 1988, when George W. Bush’s father was elected. At 82, in waning health, Justice Brennan had to have felt a real stake in the outcome, for the next president was almost certain to name his successor. (Two years later, the elder Bush did just that, naming Justice David H. Souter.) “So,” I ribbed him, “any second thoughts about ‘one person, one vote’ now?”

His answer was as poignant as it was emphatic. “Never,” he said. “This is the one day when we, as a nation, all speak at once on a fundamental question about our future—the one day when we’re all truly equal in the eyes of the law. White or black. Poor or rich. Every vote counts the same.” Then he added, “And it took us a long time and a lot of work to get there.”

Equality upended

The Supreme Court in these past weeks has turned this venerable principle on its head. At first blush, the court’s logic seems sound enough: In Florida, on person’s dimple might be counted while another’s identical dimple was discarded. Thus, the court held, counting the votes at all without uniform standards (which could never be developed in time) would violate the equal protection rights of the discarded voter.

What the court never acknowledged was that the biggest disparity among Florida voters resulted from using different kinds of voting machines from one county to the next. Voter A cast his or her vote easily, simply and reliably, based on the latest optical scanning technology, while his neighbor, Voter B, cast his or her vote on an archaic, dysfunctional, error-prone voting machine. By some estimates, Voter B’s vote was up to 10 times as likely to be thrown out as Voter A’s. What’s more, the error-prone machines were more likely to be used in communities of color just the sort of inequality Baker v. Carr was designed to fix.

It’s bad enough that the court ignored the real source of inequality, but the travesty was that it went further, holding that the state was not even allowed to try to fix the mechanical disparity with a manual recount. And, to add insult to injury, the court reached this conclusion in the name of equality, citing the precedents that emerged from Baker.

This kind of judicial headstand is the signature trick of the Rehnquist Court. Consider, for example, what the same five-justice majority has done with rules originally designed to prohibit white legislators from drawing district lines20to diminish the political power of communities of color.

Those rules have now been conscripted to prohibit white majorities from ever drawing lines to share power with communities of color. Similarly, this same bloc of justices has converted Brennan-era cases prohibiting discrimination against racial minorities into cases that prohibit affirmative-action efforts to help minorities rise up to an equal playing field.

But the distortion in Bush v. Gore seems worse, as it will affect who wields the executive power for the next four years and, derivatively, judicial power for a decade or more. All in the name of equality.

Since Justice Brennan’s ghost plays so prominent a role in this saga, I feel compelled to find some silver lining, just as he always did. And it’s this: The court has unleashed a powerful force for electoral reform, notwithstanding its caveat that its apparent love affair with political equality was just an one-night stand.

If unequal treatment of chads is a flaw of constitutional magnitude, then virtually any disparity in voting mechanisms, structures or practices is now subject to constitutional challenge. No doubt, states will have to purchase and maintain the same voting technology statewide. They might also be forced to supply the same level of voter information, support and staffing in every district. And if we take the court’s equality principle seriously, it must apply to voter registration efforts, absentee ballots, the distribution of polling places and their hours of operation.

That’s just for starters. Equality is powerful stuff. Justice Brennan may have the last laugh after all.

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ABOUT THE AUTHOR
E. Joshua Rosenkranz is the Executive Director of the Brennan Center for Justice at NYU School of Law.